Trafficking in Persons as a Public Health Issue

Trafficking in human beings for forced labor has become a growing concern for public health organizations, international human rights non-governmental organizations (NGOs), individual countries, the United Nations, law enforcement, and people throughout the world. Trafficking occurs in almost every country for almost every type of labor imaginable. Trafficked persons include men, women and children. Children are trafficked and forced to beg, girls and women are trafficked into domestic servitude or forced prostitution, men are trafficked for forced construction work. Some trafficked persons enter a country legally on worker visas (domestic work, "entertainment," computer, agricultural), and others enter illegally. Some work in legal occupations (domestic work, construction work), while others toil in illegal industries (begging, sex work). Thus, trafficked persons are not a unified, cohesive group of people. In addition to human rights abuses, trafficked persons suffer from a plethora of physical and mental health problems stemming from the type of work performed and lack of adequate health care.

Many people, organizations and countries conflate smuggling and trafficking. Smuggling, sometimes called facilitated migration, occurs when a person, for a fee, uses an individual or a criminal organization to assist them in migrating from one country to another. Once a person reaches her country of destination, the business relationship terminates and they both go their separate ways. In cases of trafficking, however, the association continues, often becoming exploitative and violent. Although smuggling and trafficking are two different phenomena, they may overlap. Many people use organized criminal groups to help facilitate their movement (smuggling), only to learn upon arrival in the destination country either that the fee has increased or their passports are taken away or they are raped and forced to work (trafficking). Other people who arrange to be smuggled to another country and agree to specific types of labor, i.e., sex work, construction work, domestic work, find themselves living and working in slavery-like conditions. Thus, in some cases people know they are going to work in a brothel or a sweatshop; yet certain labor conditions -- i.e., slavery like-conditions, beatings or rapes -- have been forced upon them. On the other hand, many women voluntarily migrate abroad to work in the sex industry and do not end up in exploitative situations. However, those who end up exploited and abused need protection and assistance as trafficked persons.

Excerpted with permission from Reaching the Hard to Reach, forthcoming
Chapter: Trafficking in Persons as a Public Health Issue ,
Melanie Orhant
Program for Appropriate Technology in Health

UNITED NATIONS CRIME COMMISSION

In December 2000, the UN Crime Commission opened a new international agreement against trafficking for signature. The Trafficking Protocol , together with a Convention Against Transnational Organized Crime and a Smuggling Protocol are primarily law enforcement instruments that will increase cross-border cooperation by governments and ensure that all countries have adequate laws to address these crimes. The Trafficking Protocol contains the first-ever definition of trafficking.  The definition ensures that all forms of trafficking into forced labor, slavery and servitude are covered and recognizes the difference between coercive and voluntary participation in the sex industry. The terms "exploitation of the prostitution of others" and "sexual exploitation" are intentionally left undefined to ensure that all governments will be able to sign the Protocol, despite having different legal regimes on prostitution. The Travaux Preparatoires , which is a document explaining the intention of the 120+ countries that drafted the Protocol, contains language to this effect. The definition and selected Travaux explanations are set out below:

TRAFFICKING PROTOCOL DEFINITION OF TRAFFICKING IN PERSONS:

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Definition of Trafficking in Persons

"(a) 'Trafficking in persons' shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability [1] or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation [2] , forced labor or services, slavery or practices similar to slavery [with footnote on illegal adoptions], servitude or the removal or organs [with footnote explanation];

(1): "The travaux preparatoires should indicate that the reference to the abuse of a position of vulnerability is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved."

(2): "The travaux preparatoires should indicate that the Protocol addresses the exploitation of prostitution and other forms of sexual exploitation only in the context of trafficking in persons. The terms "exploitation of the prostitution of other" or "other forms of sexual exploitation" are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws."

"(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) shall be irrelevant where any of the means set forth in subparagraph (a) are established; [4] [5] "

(4): The travaux preparatoires should indicate that subparagraph (b) should not be interpreted as imposing any restriction on the right of accused persons to a full defense and to the presumption of innocence.

(5): "[The travaux preparatoires] should also indicate that it should not be interpreted as imposing on the victim the burden of proof. As in any criminal case, the burden of proof is on the State or public prosecutor, in accordance with domestic law. Further, the travaux preparatoires will refer to article 11, paragraph 6, of the Convention, which preserves applicable legal defenses and other related principles of the domestic laws of States Parties."

(c)    The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;

(d)    "Child" shall mean any person under eighteen years of age."